WRONGFUL DEATH PROCEEDS BELONG TO THE DISTRIBUTEES, NOT THE ESTATE; THEREFORE, RATHER THAN DIVIDING THE PROCEEDS EQUALLY, SURROGATE’S COURT MUST CONDUCT A HEARING AND DISPURSE THE PROCEEDS BASED UPON PECUNIARY LOSS (FIRST DEPT).

The First Department, reversing Surrogate’s Court, noted that the proceeds of a wrongful death action belong to the distributees, not the estate. Therefore the proceeds should not be divided equally among the distributees:

Petitioners commenced this proceeding in Surrogate Court seeking judicial allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful death action. The proceeds of a wrongful death action belong to the statutory distributees of the decedent and not to the estate; therefore, the law does not presume equal distribution of shares (see EPTL 5—4.3 and 5—4.4[a][1] ). Instead, each distributee receives damages in proportion to the pecuniary injuries suffered by him or her, as determined after a hearing in Surrogate’s Court (see EPTL 5—4.4[a][1]). Here, Surrogate’s Court allocated objectant 50% of the settlement proceeds of the wrongful death action without conducting a hearing on the issue of pecuniary loss. Matter of Dixson, 2021 NY Slip Op 02870, First Dept 5-6-21